Search and rescue group sues FAA over drone use

A battle for rights to U.S. airspace is brewing between the Federal Aviation Administration (FAA) and organizations looking to operate small, unmanned aerial vehicles, or drones, for commercial and other purposes.

Texas EquuSearch, a non-profit organization that helps search for missing people, this week charged the FAA with "unlawful, arbitrary, capricious and an abuse of discretion" after the agency ordered that it stop using small drones in search and rescue missions. The lawsuit, filed Monday, is the second time in recent months that the FAA has found itself in a legal fight over the operation of small unmanned aerial vehicles (UAVs).

In March, an administrative law judge at the National Transportation Safety Board overturned a $10,000 fine imposed by the FAA on an individual for operating a UAV to take aerial photos and videos of the University of Virginia in Charlottesville. The judge reasoned that the FAA had no basis for imposing the fine because there are no formal rules or guidelines for operating unmanned aerial vehicles in U.S. airspace.

The FAA had charged that Raphael Pirker had flown the aircraft over the school in a dangerous and reckless manner and in violation of federal aviation safety rules. The FAA also had faulted Pirker for operating the drone for commercial gain without the requisite FAA authorization.

The Texas EquuSearch lawsuit promises to be another test of the FAA's ability to regulate commercial drones. And as more and more organizations begin to use or test drones for commercial applications, the FAA's authority to regulate the vehicles without formal laws in place first could be further tested.

The FAA Modernization and Reform Act of 2012 authorizes the FAA to issue licenses for commercial drone use in the U.S. It also requires that the agency draft rules governing the use of drones by law enforcement agencies and private entities.

The law is expected to allow tens of thousands of drones to be used for commercial purposes in the U.S. airspace over the next several years.

However, dozens of anti-drone measures enacted by state and local governments and the FAA's slowness to draft rules have complicated matters for those looking to use drones in commercial applications.

Privacy and civil rights groups want Congress to enact laws to prohibit drones from being used for mass surveillance purposes by law enforcement authorities. The groups have consistently warned that drones equipped with facial recognition cameras, license plate scanners, thermal imaging cameras, open Wi-Fi sniffers and other sensors could be used to constantly spy on the public.

Since the federal law was passed in February 2012, about 43 states have proposed a total of 130 bills and resolutions seeking limits on drone use. Anti-drone laws have been enacted in 13 states, and another 11 have adopted resolutions seeking some type of restrictions on UAVs.

Meanwhile, the FAA is defending the pace of its rule making process, arguing that finding ways to add drones to the busiest, most complex airspace in the world is a huge challenge.

Drone supporters maintain that privacy and other concerns are overblown and point to a rapid proliferation of commercial drones in Europe and other parts of the world. Many, including Texas EquuSearch, maintain that the small drones it plans to use are essentially model aircraft, which have been permitted for decades.

In its lawsuit, Texas EquuSearch, described its UAV as a model aircraft weighing less than five pounds and using the same kind of radio control system used by hobbyists. The non-profit said the aircraft had been invaluable in locating missing persons and in helping guide searchers over rough and dangerous terrain.

The complaint contends that the FAA had no legal basis for ordering Texas EquuSearch to stop operating the aircraft. An 2007 FAA policy memorandum bars individuals and organizations from operating model aircraft for commercial or business purposes without proper authorization. However, that prohibition was articulated merely as a policy statement and never as a formal rule, the non-profit maintains.

Even if the policy statement was binding, the FAA's order is still unjust because Texas EquuSearch has never operated drones for commercial gain, said Brendan Schulman, a lawyer with Kramer Levin Naftalis & Frankel LLC, the law firm representing the non-profit.

"The argument is that there is no valid regulation that makes the humanitarian use of a model aircraft illegal," Schulman said in an email to Computerworld. "Our argument is that no license is needed because people have been free to operate model aircraft for decades without any regulatory oversight."

A FAA spokeswoman said the agency is reviewing Texas EquuSearch's appeal of its order.

"The agency approves emergency Certificates of Authorization (COAs) for natural disaster relief, search and rescue operations and other urgent circumstances, sometimes in a matter of hours," she said via email. "We are not aware that any government entity with an existing COA has applied for an emergency naming Texas EquuSearch as its contractor" in search and rescue missions, she added.

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